IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 5, 2002

STATE OF TENNESSEE v. LARRY BROOKS

 Appeal from the Circuit Court for Crockett County

No. 3216 L. T. Lafferty, Judge

No. W2001-02478-CCA-R3-CD - Filed April 26, 2002

The Defendant, Larry Brooks, was convicted by a jury of aggravated robbery, aggravated assault,

aggravated burglary, vandalism, and theft up to $500. The Defendant was subsequently sentenced

as a Range III, persistent offender to twenty years for the robbery, ten years for the assault, ten years

for the burglary, and eleven months, twenty-nine days for each of the misdemeanors, all sentences

to run concurrently. In this direct appeal the Defendant raises four issues: (1) whether the trial court

erred in denying his motion to suppress; (2) whether the evidence is sufficient to support his

convictions; (3) whether the trial court erred in sentencing the Defendant more than forty-five days

after the jury verdict; and (4) whether the trial court erred in classifying the Defendant as a persistent

offender in imposing sentence. Finding that principles of double jeopardy prohibit the Defendant’s

convictions for aggravated assault and theft, we reverse and dismiss those convictions. In all other

respects, we affirm the judgment of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part;

Reversed in Part

DAVID H.WELLES,J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT W.

WEDEMEYER, JJ., joined.

S. Jasper Taylor, IV., Bells, Tennessee, for the appellant, Larry Brooks.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;

Clayburn L. Peeples, District Attorney General; and Gary Brown, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The victim, Ms. Bennie Faye Leggett, testified that between 6:30 and 7:00 p.m. on the

evening of November 22, 1999, she was sitting in her den watching televison when a black man

entered her house and asked her if she had any money. She responded that she had “a little,” and

the man then brandished a box cutter with the blade displayed, telling her he wanted her money. Ms.
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Leggett retrieved her billfold and gave the man two twenty dollar bills and several one dollar bills.

The man took the bills, as well as some change laying on a table, and left. Ms. Leggett then locked

her doors and called the police. Ms. Leggett testified that she had been “terrified” by the encounter.

When the police arrived, they discovered that a storm window had been removed from a back

bedroom window, and the window opened. Ms. Leggett did not identify the Defendant at trial. 

George Boykin testified that he was a neighbor to Ms. Leggett, and that he saw the Defendant

standing in his yard on the evening of the burglary. Mr. Boykin did not know why the Defendant

was there. The Defendant asked Mr. Boykin for a ride to Bells, where the Defendant lived. Mr.

Boykin accommodated the Defendant, and when he returned, found “a yard full of police.” In

response to the officers’ questions, Mr. Boykin explained where he had dropped off the Defendant.

Mr. Boykin testified that there “[w]asn’t nothing wrong with [the Defendant] when [he] saw him.”

Officer Jeff Sills responded to the call and spoke with Ms. Leggett. Officer Sills testified that

Ms. Leggett was “very upset.” Ms. Leggett explained what had happened and gave Officer Sills a

description of the burglar. After speaking with Ms. Leggett and Mr. Boykin, Officer Sills

apprehended the Defendant and recovered an orange box cutter from a rear pocket of the Defendant’s

jeans. Officer Sills also recovered thirteen dollars and a lighter from the Defendant’s person, and

a crack pipe found in the Defendant’s “vicinity.” Officer Sills testified that the Defendant appeared

to be under the influence of some type of intoxicant, and for that reason decided not to interview him

that night.

Officer Sills testified that he and Deputy Barney Robertson interviewed the Defendant the

next day at about 4:00 in the afternoon. The Defendant was “very apologetic,” and began explaining

what had happened as Officer Sills was trying to read him his rights. Officer Sills asked the

Defendant to stop until he was finished with the rights waiver, and the Defendant subsequently

signed the rights waiver form. The Defendant confessed to the events of the previous night, and

Officer Sills asked him to write out his statement. The Defendant told Officer Sills that he wanted

Officer Sills to write the statement, which Officer Sills did. The Defendant then signed the

statement. The text of the statement is as follows:

I Larry Brooks walked from Gadsden to Fruitvale at which time I

walk up to the house to rear and took the window screen and the

storm window out, at which time I Larry Brooks went into house[.]

[T]he victim was watching tv and told her to give me her money. I

could have had the box cutter in my hand[.] I got two $20.00 bills

from her purse and I Larry Brooks left went across the street and got

a ride from George Boykin to Bells. I got the crack cocaine from off

Woods Road. 

Officer Sills testified that, the next day, the Defendant sent out a letter to Officer Sills for

delivery to Ms. Leggett. The letter was signed by the Defendant. The text of the letter is as follows:
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Hi! I just want to say I’m sorry for my actions. I was druged [sic],

hope you can forgive me. I hardly remember what happen and I

really fill [sic] bad. I hope I can get help from the courts. I know I’m

in trouble but I’m not a bad person. I was doing great until I smoked

a bad piece of dope. Seem like I lost my mind and I think [sic] God

for not allowing me to harm you because I had no control of my

body. Please don’t hate me, I’m sorry. I no [sic] you believe in God

so ask God to help me although I did you wrong. It wasn’t meant to

be. I’m sorry. Larry

Deputy Barney Robertson did not participate in the Defendant’s apprehension, but did

participate in taking the Defendant’s statement the next day. Deputy Robertson testified, “[the

Defendant] told us exactly where -- what window he went through and that he want[ed] to go ahead

on and get it over with because he didn’t want to bring this old lady to trial and drag her through all

this stuff.” According to Deputy Robertson, the Defendant subsequently explained that “he couldn’t

write that good that he wished somebody would write [his statement] for him.” 

The Defendant testified, and stated that he “did not break in [Ms. Leggett’s] house and [he]

did not rob her.” With respect to his confession, the Defendant testified that when Officer Sills and

Deputy Barney took him out of his cell, they told him that if he “didn’t apologize to that woman,

[he] was going to be in jail a long time.” The Defendant also stated that one of the officers told him

that the victim had given his name and that they had his fingerprints on the victim’s purse. He

denied telling Officer Sills the matters contained in the written statement, stating that he signed a

blank piece of paper. He admitted writing the letter of apology, explaining that he wrote it the night

he was apprehended while he was “strung out” on cocaine and after he was told that he would be

there “a long time” if he didn’t apologize. The Defendant testified that he gave the letter to Officer

Sills the next morning, explaining that if the victim could identify him, he would “take the charge.”

The Defendant testified that he was in Fruitvale to visit “Sarah and them’s house” but they weren’t

home, so he walked over to Mr. Boykin’s house to get a ride to Bells. 

On cross-examination the Defendant explained that he had been carrying the box-cutter

because he had used it earlier in the day to lay a rug. Also on cross-examination, the Defendant

denied that he signed the rights waiver form, and explained that he asked for the letter of apology

to be returned to him after he “came down” from the cocaine and realized he hadn’t committed the

crimes. He stated that Officer Sills refused to return the letter. The Defendant also testified on

cross-examination that he remained “strung out” from the cocaine for two weeks. The Defendant

testified that he admitted to the crimes “[b]ecause they made me feel like I did while I was on the

drugs.” 

The Defendant first contends that the trial court erred in refusing to suppress his statement.

We initially note that “a trial court’s findings of fact in a suppression hearing will be upheld unless

the evidence preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Moreover,
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questions of witness credibility, the weight and value of the evidence adduced at the suppression

hearing, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier

of fact. Id. When reviewing a trial court’s ruling on a motion to suppress, this Court may consider

both the evidence adduced at the suppression hearing and the evidence presented during the

subsequent trial. See State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

During the suppression hearing, Officer Sills, Deputy Barney Robertson, and the Defendant

testified similarly to their testimony at trial. That is, the law enforcement officers testified that the

Defendant made a voluntary confession, and the Defendant testified that he did not, but merely

signed a blank piece of paper that Officer Sills then filled in with Officer Sills’ version of the events.

The trial court ruled at the suppression hearing as follows:

So, it comes down here to an assessment of the credibility of

the witnesses which I would find more reasonable on behalf of the

State based on their demeanor, their sources of information and things

like that. I don’t find it believable or plausible that the officers had

him sign a blank piece of paper and then filled in the information.

So, in essence, I deny the Motion to Suppress.

The evidence does not preponderate against the trial court’s findings. This issue is without merit.

The Defendant next contends that the evidence is not sufficient to sustain his convictions,

pointing out that a confession must be corroborated by sufficient independent proof to support a

guilty verdict. We acknowledge that, as recently noted by our supreme court, “[i]t is a wellestablished principle of law in this state that a conviction cannot be founded solely upon a

defendant’s confession, and our cases have long required some corroborating evidence in order to

establish the corpus delicti.” State v. Smith, 24 S.W.3d 274, 281 (Tenn. 2000). However, the

corroborating evidence is sufficient if it tends to connect the defendant with the commission of the

offense, even where the evidence is slight and entitled to but little weight when standing alone. Id.

(citing Ricketts v. State, 241 S.W.2d 604, 606 (Tenn. 1951)). 

In this case, the Defendant’s confession is corroborated by his presence near the scene of the

crime and the presence of the box-cutter on his person. While this evidence may, indeed, be only

“slight,” it is sufficient to corroborate the Defendant’s confession. Accordingly, the evidence is

sufficient to support the Defendant’s convictions, and this issue is without merit.

Although not raised by either party in this appeal, we find plain error requiring the reversal

on double jeopardy grounds of the Defendant’s convictions of theft and aggravated assault. See

Tenn. R. Crim. P. 52(b). Theft is a lesser-included offense of aggravated robbery. See generally,

State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999). See also State v. Bowles, 52 S.W.3d 69, 79

(Tenn. 2001); State v. Hayes, 7 S.W.3d 52, 56 (Tenn. Crim. App. 1999) (finding that “theft is a

lesser included offense of robbery and aggravated robbery.”) Because the Defendant’s theft

conviction in this case is based upon the same facts as his aggravated robbery conviction, double

jeopardy principles require that his theft conviction be dismissed. See Hayes, 7 S.W.3d at 55-56
1

Aggravated robbery may b e comm itted witho ut any fea r on the p art of the vic tim, if it is accomplished by

violence. See Tenn. Code An n. § 39-1 3-402 (a)(1). Po inting a de adly we apon at th e victim during the course of an

aggrav ated robb ery, as wa s done in this case, con stitutes violen ce. See State v. Allen, __ S.W.3d __, __, 2002 Tenn.

LEXIS 76, at *8 (Tenn. 2002). But see State v. Aaron Benard Gray, No. 02C01-9707-CC-00270, 1998 Tenn. Crim.

App. LEXIS 505, at *6-7 (Jackson, May 1, 1998) (“[a]ggravated assault causing another to reasonably fear imminent

bodily injury by the use of a dead ly weapo n is a lesser inclu ded offe nse of ag gravated robbery by the us e of a dea dly

weapon.”) 

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(noting that “[a]n offense encompassed in total within another offense . . . does not require proof of

an additional fact, and it is therefore considered the same offense and barred by double jeopardy.”)

Double jeopardy considerations also require reversal of the Defendant’s aggravated assault

conviction. In State v. Denton, 938 S.W.2d 373, 381 (Tenn. 1996), our supreme court set forth a

four-step analysis for determining whether multiple convictions arising from the same conduct are

barred by Tennessee’s constitutional prohibition against double jeopardy: (1) a comparison of the

statutes giving rise to the convictions under Blockburger v. United States; (2) an analysis of the

evidence used to prove the offenses; (3) a consideration of whether there were multiple victims or

discrete acts; and (4) a comparison of the purposes of the respective statutes. No one of these steps

is determinative; rather the results of each must be weighed and considered in relation to each other.

Id.

The Blockburger test provides that “where the same act or transaction constitutes a violation

of two distinct statutory provisions, the test to be applied to determine whether there are two offenses

or only one is whether each provision requires proof of an additional fact which the other does not.”

Blockburger v. United States, 284 U.S. 299, 304 (1932). Aggravated robbery, as charged and proved

in this case, is the intentional or knowing theft of property from the person of another by violence

or putting the person in fear, accomplished with a deadly weapon. See Tenn. Code Ann. § 39-13-

402(a)(1) (emphasis added). Aggravated assault, as charged and proved in this case, is intentionally

or knowingly causing another to reasonably fear imminent bodily injury, accomplished with a deadly

weapon. See id. § 39-13-102(a)(1)(B). Thus, aggravated robbery requires a theft of property, an

element which is not required for a conviction of aggravated assault. Aggravated assault requires

that the victim “reasonably fear imminent bodily injury,” an element not necessarily required for

aggravated robbery.1

 Accordingly, we conclude that aggravated assault and aggravated robbery are

not the “same” offense under Blockburger.

The other three steps of Denton indicate, however, that the Defendant’s dual convictions for

aggravated assault and aggravated robbery in this case are based on the “same” offense and are

therefore barred by double jeopardy. The same evidence was used to prove both offenses: the

Defendant accosted the victim in her home and brandished a box cutter in order to persuade her to

give him money. There was but a single victim, and a single act. The purpose of each statute is to

prevent assaults and robberies with deadly weapons. Accordingly, we conclude that, under the

principles set forth in Denton, the Defendant’s dual convictions for aggravated robbery and
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aggravated assault are barred by double jeopardy. Therefore, we reverse and dismiss the

Defendant’s conviction for aggravated assault. 

In his next issue the Defendant contends that the trial court erred when it conducted his

sentencing hearing on the forty-sixth day following the guilty verdicts. The Defendant relies upon

a provision of our sentencing statutes which states, in pertinent part, “[b]efore imposing sentence or

making other disposition upon . . . a verdict . . . of guilty, the court shall conduct a sentencing

hearing without unreasonable delay, but in no event more than forty-five (45) days after the finding

of guilt . . . .” Tenn. Code Ann. § 40-35-209(a). 

We first note that “it is the general rule in Tennessee that statutory provisions which relate

to the mode or time of doing an act to which the statute applies are not to be mandatory, but directory

only.” State v. Jones, 729 S.W.2d 683, 685 (Tenn. Crim. App. 1986). This general rule applies to

this particular provision. Id. Moreover, the Defendant has demonstrated no prejudice resulting from

this one day delay, and is therefore entitled to no relief. See id. (finding that “no prejudicial error

requiring appellate reversal occurred with regard to this issue inasmuch as the delay in sentencing

amounted to only three days . . . [and] without a showing by the appellant of resulting prejudice, any

error must be harmless.”) In short, this issue is without merit.

Finally, the Defendant contends that his sentence is excessive, arguing that the trial court

erred in finding him to be a Range III, persistent offender. When an accused challenges the length,

range, or manner of service of a sentence, this Court has a duty to conduct a de novo review of the

sentence with a presumption that the determinations made by the trial court are correct. See Tenn.

Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the

record that the trial court considered the sentencing principles and all relevant facts and

circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,

if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of

sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the

criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of potential for

rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875

S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.

App. 1988).

If our review reflects that the trial court followed the statutory sentencing procedure, that the

court imposed a lawful sentence after having given due consideration and proper weight to the

factors and principles set out under the sentencing law, and that the trial court’s findings of fact are

adequately supported by the record, then we may not modify the sentence even if we would have

preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
2

See Tenn. Code An n. § 39-13-402(b).

3

See Tenn. Code An n. § 39-14-403(b).

4

“Convictions for multiple felonies committed as part of a single course of conduct within twenty-four (24)

hours constitute one (1) conviction for the purpose of determining prior convictions.” Tenn. Code Ann. § 40-35-

107(b)(4).

5

At least five of these occu rred on separate d ates.

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The Defendant was convicted of aggravated robbery, a Class B felony,2 and aggravated

burglary, a Class C felony.3 A defendant may be classified as a persistent offender upon a finding

that he has received “[a]ny combination of five (5) or more prior felony convictions within the

conviction class or higher, or within the next two (2) lower felony classes, where applicable.” Tenn.

Code Ann. § 40-35-107(a)(1). In this case, the State put on proof that the Defendant has multiple

felony convictions dating from the period 1977 through 1988. The trial court found that five of these

prior convictions were Class D felonies occurring on separate dates,4 and at least seven of them were

Class E felonies.5 Accordingly, the trial court determined beyond a reasonable doubt that the

Defendant was a persistent offender with respect to the instant felony convictions, and therefore

subject to a Range III sentence. See id. § 40-35-107(c). The trial court subsequently sentenced the

Defendant to the minimum sentences available for a Range III, persistent offender on Class B and

C felonies. See Tenn. Code Ann. § 40-35-112(c)(2), (3).

The Defendant now contends that the trial court erred, arguing that all but one of his prior

convictions would have been Class E felonies or misdemeanors had the underlying offenses been

committed after 1989, and that he therefore should be found to have insufficient prior felonies of the

relevant classes to be classified as a persistent offender with respect to his instant felony convictions.

In other words, the Defendant asserts that the trial court should have evaluated the classifications of

his prior convictions as if the underlying offenses had been committed after 1989 rather than before.

This Court has previously rejected this argument. See State v. Wright, 836 S.W.2d 130, 136 (Tenn.

Crim. App. 1992). In Wright, the defendant contested the trial court's determination that he was a

career offender, using an argument identical to the Defendant’s. In rejecting this argument, this

Court noted that, “[w]hen calculating the number of prior convictions a defendant has received, ‘[a]ll

prior felony convictions including those occurring prior to November 1, 1989, shall be included .

. . . ’” Id. (quoting Tenn. Code Ann. § 40-35-108(b)(2)). In light of this statutory provision, the

Wright panel determined that “[t]he legislature, in enacting [the career offender provision], was

aware that some offenses which were felonies under prior law were no longer felonies under the

[Criminal Sentencing Reform Act of 1989]. There appears to be no doubt that the legislature

intended to permit consideration of all prior felony convictions occurring during the defendant’s

life.” 836 S.W.2d at 136. See also State v. Chris Billingsley, No. 01C01-9506-CC-00166, 1996

Tenn. Crim. App. LEXIS 304, at *16 (Nashville, May 16, 1996). The same analysis applies to the

persistent offender provision. Accordingly, the trial court did not err in refusing to classify the

Defendant’s prior convictions as though the underlying offenses had been committed after 1989.
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The record supports the trial court’s determination that the Defendant is a persistent offender

with respect to the instant felony convictions, and therefore subject to Range III sentences. This

issue is, therefore, without merit.

The Defendant’s convictions of aggravated assault and theft are reversed and dismissed. The

judgment of the trial court is otherwise affirmed. 

 

___________________________________ 

DAVID H. WELLES, JUDGE